Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use

from the just-can't-accept-it... dept

Back in October, we noted that Righthaven had lost its first lawsuit, as a judge declared using 8 sentences out of a 30-sentence article as "fair use." We noted it was a little strange at the time to use a fair use analysis at that stage of the legal fight, but it seemed clear that the judge wanted to get it over with rather than waste time on other issues. That ruling got Righthaven to say that it would begin to focus on the use of complete works to avoid such issues. However, it appears the legal shakedown shop has decided that it actually wants to push back on the original fair use claim. It's now appealed the ruling and wants the appeals court to say that such a use is not "fair." Of course it does. It needs a larger pool of folks to demand cash from, which is all this appeal is about.

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"Excessive fair use means to be having the "fair use" rules extend so far, that they pretty much overrule much of the copyright laws.

One paragraph? Two? Half a page? At some point, the original loses it's value against this."

So true, what most people don't realise is that newspaper articles need to be reprinted many times just to recoup on the costs of the journalism.
It's not like a newspaper article or report is published today and is then out of date and has no newsworthy value later.
If newspapers cannot reprint a news report on at least 2 or more occasions they will be losing money and so they would go out of business and then there would be no news.
Freetards just don't think things true.

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If newspapers cannot reprint a news report on at least 2 or more occasions they will be losing money and so they would go out of business and then there would be no news.
Freetards just don't think things true.

Hi. Welcome to the 21st century. If you are counting on a strong market for paper reprints of news articles, you are kidding yourself.

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Your sarcasm is rather, umm, obvious.

Newspapers don't "reprint" articles typically, but they often do resell them via newswires to other papers and news organizations. If those other newspapers didn't feel the need to pay for them, it would change the economics of writing the news to start with.

There will always be news. The question is if you want to get your news from a Ralph Wiggam type standing on a street corner counting cars, from a biased blog writer who cannot ever accept to be wrong, or from a professional journalist who tries to follow standards for collecting and reporting the news.

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Newspapers don't "reprint" articles typically, but they often do resell them via newswires to other papers and news organizations. If those other newspapers didn't feel the need to pay for them, it would change the economics of writing the news to start with.

Yes! It is absolutely changing the economics of writing the news!

Because, what is the point of wire services today? With all news available digitally, location is no longer important, so there is no need for multiple local publications to share the same information. Are you saying we should prop up that completely obsolete business model?

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quick new law needed to protect wire services.

Every newspaper proprietor must subscribe to a wire service
and
all reports that they plan to publish in their papers must be submitted to said prepublication to said wire service so that it can be purchased legally from them before the print run commences.

Anyone in breach of this law is clearly a freetardpedoterrorist and thusly has no rights.

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"they need to be able to control when and where their content is used"

No, they shouldn't get to decide that those who criticize their content aren't allowed to. and they especially don't need to. It's not like they will die if they don't and journalistic news will certainly continue unabated even if they don't. Sure, they may 'want' to control when and where the content they produced is used, but it's not a need. and people shouldn't always get what they want either. I want a million dollars.

"to monetize it and to be able to produce it in the future."

No one is stopping them from producing it in the future. As long as they don't try to stop others from producing it in the future.

"Excessive "fair use" rights can reach a point where the average person no longer needs to read the original story"

Who cares, it should make its way into the public domain after a week or so. News articles don't stay popular enough to be remembered and available after very long if people aren't allowed to archive it and redistribute those archives. The whole point of IP was to contribute to the public domain, not to allow some news organization the privilege of controlling when and where their content gets used.

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If the average person no longer needs to read the original story because someone reprinted 20 percent of it elsewhere, then it sounds like the original story was 80 percent garbage. Write a better story next time.

Re: Excessive Fair Use?

While it is true that if one site quotes lines 1-3/15, another site quotes lines 4-8/15 and a third site quotes lines 9-10/15 while a fourth site quotes lines 11-14/15, the entire 15 line article could be effectively published for free, this would only invalidate a fair use claim if all four sites were under the control of the same entity, or were somehow in collusion.

You don't give up an individual right because all the individuals are exercising it.

It's now appealed the ruling and wants the appeals court to say that such a use is not "fair."

As we talked about at the time, it was error for the judge to rule that the copying was fair use at the motion to dismiss stage of the proceedings, since there are still disputed facts that must be resolved later on. As you'll recall, Eric Goldman agreed that this was error: http://blog.ericgoldman.org/archives/2010/10/righthaven_defe.htm

Righthaven is not trying to get the court of appeals to say the use was not fair, as you've indicated. Rather, the issue is procedural error, and they want to get the judge's dismissal of the case overturned. The use may very well end up being fair, that's not the point. The point is the judge should not have ruled it was fair use on a motion to dismiss.

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Sigh. Okay, technically, you're right. Righthaven is appealing the final ruling, indicating that the Judge should not have ruled that way in that stage. That's what they're appealing, the procedure of the judgement.

But at the end of the day, they're not appealing just because they were miffed at a procedural flaw. They want the use deemed not Fair Use. I would think that was obvious....

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"What you call nitpicking, I call being accurate. I'm not sure why that upsets you, Tim."

Well, if you want to have THAT discussion, it's how your general tone and contributions here have changed as of late. What once was one of my favorite dissenting commentors around here has for some reason morphed into a petulant asshat that apparently gets some joy out of simply riling others up rather than adding anything substantive to the discussion. What was once links and citations coupled with what appeared to be an honest curiosity about the merits of issues has transformed into a defensive stance backstopped by a few seemingly informative citations that, once argued against reasonably, get repeated over and over again for what appears to be no other reason other than you can't admit you are or might be wrong.

Karl's piece yesterday illustrated it perfectly, especially when coupled with your jackassery about child molesting and subsequent attempts to tapdance your way out of what you said. I used to like and appreciate you. Now I don't. You morphed yourself into a caricature that isn't helpful, illutrative, or in any way useful.

And I think I fairly pointed out that technically you're right, yet that technicality adds nothing to the discussion and is essentially besides the point. Mike said Righthaven wants the use to be ruled NOT Fair Use. You said that wasn't what they were doing with this specific appeal. You're right. So what? Mike's general assertion is still true. So...you've added nothing.

At least MY dumb ass tries to make people laugh now and again. I'm no lawyer, although I read up on the laws we discuss. I believe I have an intelligent thing to say now and again, but most of my nonsense I write for the hopeful enjoyment of others. I see myself as 20% informer and 80% entertainer.

I write all that self-aggrandizing crap about myself only to lead to the question I find myself asking the voices in my head about you lately: what is your purpose?

Seriously. What are you hoping to accomplish here, how are you hoping to accomplish it, and how do you think you're fairing?

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Oh, yes, VERY convincing. Just to summarize: you won't tell me what point you were trying to make and you say there's a comment that perfectly explains what your point was, but you won't link to it or tell me which one.

Two comments lower, you claim that you back up what you say more than anyone else on this site.

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Ah, so on top of everything else, you're a conversational bully as well. All I'm asking for is a link to something you claim exists. If you choose to take your ball and go home because this question upsets you, that's your choice I guess.

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No, my slippery friend, idiocy is alluding to someone loving child pornography simply because they don't like it's banner being raised as an excuse and then not bothering to apologize or back down from such a ridiculous stance....

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What once was one of my favorite dissenting commentors around here has for some reason morphed into a petulant asshat that apparently gets some joy out of simply riling others up rather than adding anything substantive to the discussion. What was once links and citations coupled with what appeared to be an honest curiosity about the merits of issues has transformed into a defensive stance backstopped by a few seemingly informative citations that, once argued against reasonably, get repeated over and over again for what appears to be no other reason other than you can't admit you are or might be wrong.

I agree with this so hard. I think maybe he internalized our previous belief that he wasn't a troll, and stopped trying to not be a troll.

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I take the time to explain my position more than any other poster on TD that I can think of. What does it get me? Grief from people like you. I'm sorry if my views upset everyone's world views. I like my world view to be challenged. People here apparently like to hear only what they want to hear. It's idiotic.

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I like my "worldview" to be challenged by people who have constructive criticism, who actually expand the body of information being discussed, who bring new ideas to the table, etc. (you know, like you used to do)

Conversely, I get pretty bored of challenges from someone who has run out of things to say and continues to repeat the same flimsy arguments ad nauseam (you know, like you do now)

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People here apparently like to hear only what they want to hear.

No, we generally welcome constructive dissent, which you used to provide. In fact, I've defended you from other trolls on several occasions. Now, it's like you're just trolling us for shits and giggles.

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All I did was point out a factual error in Mike's article. Rather than get thanks, I get flack from all sides from people who, frankly, I wonder how they can even dress themselves in the morning. The level of idiocy on this site is astounding. I'm going to start tuning all the idiots out and just respond to people who want to have productive conversations. Honestly, Rose, don't defend me. I don't fucking care what you do.

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"Rather than get thanks, I get flack from all sides from people who, frankly, I wonder how they can even dress themselves in the morning."

No, you're getting flack because of your recent global body of commenting work on this site, some of which has included statements that many find reprehensible. And you know that.

"The level of idiocy on this site is astounding."

Well, that's just not nice. I'm not supposed to thank you for that too, am I?

"I'm going to start tuning all the idiots out and just respond to people who want to have productive conversations."

The way you've been commenting recently, I'm not responding in order to engage you any longer. I'm doing it so that unsuspecting folks who may not know your larger body of work will be aware that you aren't to be considered relevant. So I'm actually glad you'll ignore these comments; they aren't for you anyway....

"Honestly, Rose, don't defend me. I don't fucking care what you do."

See, now that isn't the way a respectable gentleman speaks to a lady, even one like Rose who is clearly able to hold her own and probably didn't blink reading what you wrote. Language, language, kiddo. A general respect for women would probably improve your status in most people's eyes....

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Wow, you need to get some extra padding in the helmet, because you are getting way too sensitive about things. Is there some sort of new law that says nobody can reply to your comments? Do you feel all godly and powerful and desire to talk down to the rest of us from on high?

Regardless of the true intent of Righthaven, I think the issue of procedure is a valid one here. It does seem like there should be a procedure for getting these actions kicked out earlier. However, it also seems that perhaps the judge acted in hast here. Generally the standard one must meet to succeed when filing a motion to dismiss is that the assertion of the non-moving party, even if true, does not raise an actionable claim. It might have been better to rule at the summary judgment stage.

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That's exactly right. Of course, we already know how this judge is going to rule on summary judgment on remand. The point is to rectify the judge's error, even though in the end, Righthaven still loses.

Intimidation tactics

What I think is truly the issue is the fact that Righthaven is clearly using intimidation tactics and a distortion of the copyright law to carry out these cases.

The range of copyright infringement penalties go from $200 all the way to a ridiculous $150,000. So of course they're betting on the fact that no defendant wants to go into court not knowing where they'd end up on such a spectrum of penalties.

Thus, they offer a few thousand-dollar settlement because of the defendants' fear of pursuing the case, regardless of whether or not they have willfully infringed or not.

Righthaven appeal

In the Denver Posts terms of use they say it is ok to reprint an article that is no more than a few paragraphs. This is more than the site posted that Righthaven sued and is now appealing. So Righthaven is actually appealing to allow them to sue bloggers who are within the newspapers own terms of use.